DOMAKYAAREH (MRS.), J.A

1. This is an appeal against the judgment of the Circuit Court, Kumasi dated 31^st October, 2014.

The plaintiff/respondent herein issued a writ against the defendant/ appellant herein at the Circuit Court, Kumasi on 17^th September 2010, claiming the following reliefs.

A declaration of title to and recovery of possession of all that building Plot No. 239 situate and being at Atwima Agogo on Atwima Agogo Stool land and bounded by the Plots Nos. 238 and 240 and a street and UPS house

Damages for trespass

Perpetual injunction restraining the defendant, his relatives, agents/servants from having any dealings with the said plot.

2. These claims were anchored on the plaintiff/respondent’s Statement of Claim where he averred that in 1990, he acquired three building Plots Nos, 237, 238, 239 from the Chief of Atwima Agogo, Nana Owusu Afriyie and was issued with an allocation note and a site plan. He said he built two houses on Plots Nos. 237 and 238 leaving Plot No. 239 where he piled some sand to commence the construction of another house thereon. He contended that without any justification, the defendant/appellant engaged masons and was feverishly constructing a house on the said Plot No. Atwima Agogo which he considered to constitute trespass. He therefore filed a Writ against the defendant/appellant as aforesaid, claiming the reliefs endorsed thereon.

3. In an Amended Statement of Defence and Counterclaim, the defendant/appellant denied the averments of the plaintiff/respondent and averred instead that the land in dispute is a family land which originally belonged to his maternal grandmother now deceased; that his biological mother customarily succeeded his deceased maternal grandmother; and that his said mother permitted him to build on the land in dispute numbered 285 and 240. The defendant/appellant stated that the plot on which he commenced construction of the dwelling house is Plot No. 285 and not 239 as claimed by the plaintiff/respondent. He described plot 285 as bounded by Plot 239 on the East, Plot No 284 on the North, a street on the West and a street on the South. The defendant/appellant contended that the plaintiff/respondent has taken Plot No. 240 which is bounded by Plot 284 on the North, Plot No. 237 on the South, Plot No. 239 on the West and Plot No. 241 on the East. The defendant/appellant counterclaimed for:

1. A declaration of title to Plots numbers 285 and 240

2. Recovery of possession

3. Damages for trespass and

4. Perpetual injunction restraining the plaintiff, his agents, assigns and those claiming title through him from interfering with the plots of land in dispute pending the determination of the substantive suit.

4. The case went through normal trial and in a short judgment the trial judge indicated that having analysed the evidence on record he preferred the story of the plaintiff to that of the defendant. He accordingly entered judgment for the plaintiff/respondent for all his reliefs, save for damages which he said the plaintiff/respondent had failed to prove. Consequently, he dismissed the defendant/appellant’s counter claim.

5. This appeal by the defendant/appellant shows that he was dissatisfied with the judgment and aggrieved by same. His Notice of Appeal filed on 12^th November 2014 testifies to same, where he wants the judgment of the Circuit Court set aside and the appeal allowed. His ground of appeal therein is the omnibus ground that the judgment is against the weight of the evidence. He did indicate that further grounds would be urged upon the receipt of the Record of Proceedings. Pursuant to this, Counsel for the appellant filed an additional ground of appeal on 25^th October 2015 which ground stated that the court erred when it failed to consider the contradictions in the plaintiff’s evidence before it and his evidence before the court at Nkawie. It is to be noted that this additional ground of appeal was filed almost one year after the date of the judgment appealed against. There is however no indication on the face of it that leave was sought or obtained from the court. In his written submission however, Counsel indicated that the Court granted them leave to argue the additional ground of appeal without stating the date on which the leave was granted. We shall allow it to stand as it can easily be subsumed in the omnibus ground of appeal even if we do not allow it.

6. In arguing the first ground of appeal Counsel submitted that the plaintiff/respondent could not establish that the plot in dispute is plot No. 239 as he claimed, noting that it is the requirement of the law that the plaintiff bears the burden to prove his case on the preponderance of probabilities. He submitted that it was incumbent on the plaintiff who bore the initial burden to have provided clear and unequivocal evidence to establish that the land in dispute was Plot No. 239 in the light of the fact that the defendant had insisted that the plot in dispute was Plot No. 285 and not 239. Counsel submitted that the site plans tendered by both parties did not form part of the official planning scheme of the area as there was no planning scheme approved by the Lands Commission for the area. With this state of affairs, counsel therefore submitted that the plaintiff/respondent ought to have called a surveyor to survey the land to better inform the court on whose plot the disputed land was.

7. Counsel also took issue with the capacity of PW1 who is the caretaker of the Chief of Atwima Agogo in respect of lands. He did not give his name to the court and he did not indicate which traditional office he occupies. Counsel relied on the case of OFUMAN STOOL VS NCHIRAA AND BRANAM STOOL (1957) 2 WALR 229 where the court held that a person who is qualified to represent a stool should belong to a limited class who should be the linguist, elders and office holders of the stool. Counsel submitted that since PW1 did not occupy a sub-stool or a traditional office, he was not competent to testify on behalf of the stool and therefore his evidence ought not to be taken into account in the judgment.

8. Counsel submitted that the defendant/appellant on the other hand proved his root of tittle from his maternal grandmother through his testimony and that of his witness DW1, a brother.

Counsel for the plaintiff/respondent submitted counter arguments against the submission of the defendant/appellant. Counsel submitted that the plaintiff/respondent tendered Exhibit B which is the allocation note from his grantor the Atwima Agogo in support of his case. He submitted that the Supreme Court case of FOSUA & ADU POKU V DUFIE (DCD) &ADU POKU MENSAH (2009) SCGLR 310 has settled it that documentary evidence should prevail over oral evidence. Counsel submitted the PW1 was qualified to bear witness in the suit without indicating or elaborating in what way he was qualified. He further submitted that in view of the counterclaim of the defendant/appellant for Plots numbers 285 and 240, the defendant/appellant was not challenging the title of the plaintiff/respondent on the plot no. 239 and that defendant/appellant even expressly admitted so under cross-examination. Citing the case of WEST AFRICAN ENTERPRISES LTD VRS. WESTERN HARDWOOD ENTERPRISE LTD [1995 – 1996] I GLR 155 wrongly cited by counsel as WAEL V. WAEC (1995-1996) 1 GLR 115, Counsel submitted that there is no principle of law which requires a party to prove an admitted fact. Counsel therefore submitted that the trial judge was right in entering judgment for the plaintiff/respondent for Plot No. 239.

9. Counsel also submitted that the mother of the defendant/appellant was a material witness who he should have been called to bear witness in his case since she was alleged to be his grantor. He said on the authority of EGYIR V. HAYFRON (1984-86) 1 GLR 510 it was fatal for the defendant/appellant to fail to call his grantor as a witness because that case settles it that where a party derives his title from someone else by way of a gift or purchase or other form of alienation, it was incumbent on that party where title was derivative to prove the title of his grantor, vendor or claims as the case may be.

10. On ground (b) of the grounds of appeal counsel for the defendant/appellant submitted that the trial court ignored a very important and crucial issue of the size of the plot in dispute. He submitted that this same matter went before the Circuit Court at Nkawie as a criminal matter in which the lawful attorney of the plaintiff/respondent herein testified under oath before the court that the size of the land in dispute was 100 x 110 feet found at p. 82 of the ROA where as in the instant case of the same matter he testified under cross-examination at page 37 of the ROA that each plot is 120 x feet. Counsel submitted that these contradictions ought not to be countenanced on the authority of EFFISA V. ANSAH (2005-06) SCGLR 943 PER WOOD CJ AND SARKODIE V. FKA CO. LTD. (2009) 7 GMJ 185. Counsel submitted that on the strength of these arguments, the appeal ought to be allowed.

11. Counsel for the plaintiff/respondent made a very terse response to this submission by the defendant/appellant. He said the issues set down for trial at the trial court did not include the size of the plot but rather who acquired Plot No. 239 and therefore there was no inconsistency in the evidence of the plaintiff/respondent. Counsel submitted that in any event since the defendant/appellant is not claiming Plot No. 239, the question of the size of the plot is immaterial and therefore, the appeal ought to be dismissed.

12. We must say that upon a thorough evaluation of all the evidence on record even though as a matter of academic exercise both Counsel have made very valid submissions yet we are unable to agree with either of them because when the evidence it pitched against what is on the ground, i.e. the land in dispute, the evidence of neither side adds up.

13. It is trite learning that in a matter of declaration of title to land and damages for trespass on same as well as perpetual injunction the identity of the land in question must be absolutely clear. In other words, the size, dimension and location must be proved by positive and cogent evidence. In the instant case, the dispute concerns Plot No. 239 on the part of the plaintiff/respondent and Plot No. on the part of the defendant/appellant. This means that the identity, size and location of these two plots of land must be proved positively by the respective parties. Therefore, it can only be disingenuity on the part of the plaintiff/respondent to contend that the size of the Plot No. 239 was immaterial and not an issue for determination. If the size of the plot is immaterial, even as a matter of common sense, on what basis can declaration of title be granted or damages awarded for trespass on same?

14. What is the evidence on the identities of the two plots in dispute? From the Endorsement of Claim on the Writ of Summons, the plaintiff/respondent identified Plot No. 239 as being bounded by Plots Nos. 238 and 240 and a street and UPS house. This description tallies with his own site plan Exhibit I which was tendered by the defendant/appellant through the lawful attorney of the plaintiff/respondent and admitted without objection. In the said site plan, Plot No. 239 is bounded on the West by Plot No. 238; on the North by Plot No. 240; on the East by a street and; on the South by YPS House.

15. The testimony on the identity of this plot was however different. At page 24 of the ROA, the plaintiff/respondent’s lawful attorney testified on oath in his evidence-in-chief that “it is not true that Plot No. 239 shares boundary with Plot 238”. As pointed out by Counsel for the defendant/appellant, plaintiff/respondent’s lawful attorney had earlier testified under oath at the Circuit Court at Nkawie that the size of the plot in dispute is 100 x 110 feet whereas in the instant case he testified that each plot is 120 x 130 feet or even larger. The defendant/appellant had all the time contended that he was building on plot 285. This was denied by the plaintiff/respondent who per paragraph 3 in his Reply to Statement of Defence and Counterclaim found at page 63 of the ROA said there is no plot known as Plot No. 285 yet in Exhibit 1, the plaintiff/respondent’s own building plan, there is a Plot No. 285 sharing boundaries to the west and south by sheets; to the north by Plot No. 284 and to the east by Plot No. 288. The Plaintiff’s lawful attorney conceded the existence of plot no. 285 under cross-examination at page 40 of the ROA. PW1 also testified under cross-examination that the size of each plot is 120 x 130 feet which tallies with Exhibit 1. It must be noted that this site plan Exhibit 1 which is for a project christened “Existing Building Plan on Plot No. 237, 238 & 239 Atwima Agogo” is self-serving as it is not in accordance with any approved master layout of Atwima Agogo. This lack of approval was conceded by PW1 at page 47 of the ROA.

16. On the identity of Plot No. 240 which defendant/appellant claims plaintiff/respondent has trespassed upon by putting up a building on same, he identifies it at page 65 of the ROA as sharing boundaries with Plots Nos. 241, 284, 237 and 239. Defendant/Appellant also tendered his site plan Exhibit 3 found at p. 83 of the ROA. According to Exhibit 3, plot 240 is bounded on the north by Plot 241, on the east by Plot 284 on the west by Plot 237 and on the south by Plot 239. This tallies with the testimony of the defendant/appellant. However according to Exhibit 1 at page 80 of the ROA, Plot No. 240 shares boundaries with Plots Nos. 241, 237, 239 and a sheet. Plot No. 284 is adjacent the street.

17. On the identity of Plot 285, according to Exhibit 3, it shares boundaries with Plots 284, 239 and a street each on the other two sides whiles according to Exhibit 1, plot no 285 shares boundaries with plot numbers 284, 288 and two streets. It must also be emphasised that Exhibit 3 is also self-serving as it is not in accordance with any approved layout. In the maze of all these different layouts, configurations and contradictions, it will be practically impossible from Exhibits 1 & 3 alone to pin point the areas in dispute i.e. Plots 239 and 240 which are the subject of claim and counterclaim respectively.

18. The only way of resolving the matter is to appoint a surveyor to survey the disputed areas on the ground and superimpose same on the respective site plans. Counsel for the defendant/appellant castigated the plaintiff/respondent for not appointing a surveyor to survey his plot 239 to aid his proof of same. But nothing prevented the defendant/appellant from appointing a surveyor to survey his plots 285 and 240 to prove that plot 285 which he was developing is different from plot 239 claimed by the plaintiff/respondent. Alternatively, the court could suo motu appoint a surveyor as a court expert to survey the area in dispute.

19. From an analysis of the evidence on record, we cannot find the justification for the entry of judgment for the plaintiff/respondent. To that extent therefore, the judgment is against the weight of the evidence on record. Nevertheless, the judge was right in dismissing the counterclaim of the defendant/appellant as same was not proved to the standard required by law. The judgment of the Circuit Court dated 31-10-14 is consequently set aside. The consequential order is that the case is remitted to the trial court for the appointment of court expert to survey the plots of land in dispute, namely Plot 239 and 240 and for the case to take its normal course thereafter.

Angelina M. Domakyaareh (Mrs)

(Justice of Appeal)

E. K. Ayebi JA                                I agree        E. K. Ayebi

(Justice of Appeal)

G. Torkornoo (Mrs) JA        I agree       G. Torkornoo (Mrs)

(Justice of Appeal)